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On July 14, 2017, the National Association of Convenience Stores, New York Association of Convenience Stores, Food Marketing Institute, and Restaurant Law Center (“trade groups”) filed a lawsuit against the New York City Department of Health and Mental Hygiene and its Commissioner Dr. Mary Travis Bassett, the New York City Board of Health, and the New York City Department of Consumer Affairs and its Commissioner Lorelei Salas (“Departments”) over the city’s menu labeling regulations. The lawsuit is the National Association of Convenience Stores et al. v. New York City Department of Health and Mental Hygiene et al., case number 1:17-cv-05324, and is filed in the U.S. District Court for the Southern District of New York.

The trade groups are seeking an injunction and declaratory relief that New York City’s restaurant food labeling regulations, 24 N.Y. City Rules & Reg. § 81.50(c), are preempted by federal law under the Supremacy Clause. The U.S. Food and Drug Administration (“FDA”) issued menu labeling regulations in 2014 that require restaurants and similar retail food establishments to provide calorie and other nutrition information for standard menu items. The FDA recently extended the compliance date for the regulations to May 7, 2018 to address industry concern and confusion regarding the regulations. The New York City regulations require menu labeling as well but differ from the FDA regulations in its earlier compliance date. Thus, the trade groups are challenging the Departments on preemption grounds due to the differences in the city regulations as compared to the federal regulations.

The New York City regulations were enacted in 2008, making New York City one of the first U.S. jurisdictions to require caloric information labeling. The federal government followed suit through its regulations, enacted under the Affordable Care Act, in 2014. The complaint states that while the New York City regulations were repealed and reenacted in 2015 to match the federal regulations, the Departments have not continued to match their regulations with the federal rules, such as with the extended compliance date. The complaint states that after the FDA announced its compliance deadline extension for its menu labeling regulations on May 1, 2017, New York City Mayor Bill de Blasio announced on May 18, 2017 that the City would still begin enforcing its regulations immediately. The complaint adds that the New York City Department of Health will begin issuing citations and fines for noncompliance under the city regulations on August 21, 2017.

The complaint states that industry faces large costs to comply with the city’s regulations, which have been acknowledged by the FDA as being complex and confusing, hence the FDA’s delay in implementation of its rules. Also, industry faces high costs in general in complying with the city’s regulations now when the regulations and requirements may be substantially changed by the FDA come May 2018.